Wiegman v. Morimura — 60 N.Y. St. Rep. 844

Majority

p. 844

John H. Wiegman et al., App’lts, v. Ichitaro Morimura et al., Resp’ts.

(New Fork City Court, General Term,

Filed June 20, 1894.)

Headnote

Trial—Dismissal of complaint.

In an action for damages caused by a levy by a constable, the complaint is properly dismissed in the absence of proof that the levy was instigated or suggested by the defendants or any person acting for them.

The trial justice was right in dismissing the complaint. There is no evidence showing that the defendants in any way were responsible for the acts of the constable. It does not appear that the levy made by him was instigated or suggested by the defendants, or any other person acting for them, besides it does not appear that tht plaintiffs were copartners, a necessary thing to be shown in this case, because of the allegation m the complaint that plaintiffs are copartners, and its denial by the defendants’ answer. For these and the other reasons which induced the trial justice to dismiss the complaint, the judgment must be affirmed, with costs.

Conlan, J., concurs.